Cyber-charter schools and religious education

I wrote a few days ago about the rise of the cyber-charter school, and its potential to unsettle constitutional and statutory regimes that govern K-12 education. Right now I am finishing off an article that discusses this with respect to religion. A private religious school is not allowed to operate unless it meets state requirements for all private schools, which include minimum standards for the teaching of secular subjects like math and history. But religious schools must bear the cost of that secular instruction, even though their students would receive similar instruction for free were they to enroll in public school. (States may elect to provide various kinds of aid to religious private schools at the margins, but not to the extent of absorbing the costs of secular instruction.) This minimizes interpenetration between the state-funded public school sector and the religious, private-school sector. It also makes religious schooling more expensive than it otherwise would be.

But consider a religious private school that, rather than offering secular education itself, facilitates the enrollment of its students in a state-funded cyber-charter. The instructional program of the cyberschool is completely secular. But many cyber-charters are asynchronous as well as untethered to place; students may log into school when and from where they please. So why not from inside a religious establishment? Under this model, religious school students pursue their secular studies under the physical supervision of religious teachers but the intellectual supervision of the secular charter school operators. The religious school pays for the supervision but the secular one for the teaching. So (and here I am paraphrasing an earlier piece of mine), a religious teacher might work with half the class on some religious topic while the other half, on its own for the moment, engages in secular cyber-study under the same teacher’s passive supervision. Or a cleric might begin a 45-minute English lesson with a prayer—right before secular studies begin—or interrupt a cyber-biology lesson to admonish students that the material that they are covering is a tissue of lies.

The religious school not only saves a fair bit of money by this approach, savings it can pass on to its customers, but it engineers the kind of merger between publicly funded secular education and privately funded religious schooling that our system, until now, has gone to some lengths to prohibit. But I can identify no legal problem with a religious school adopting this strategy. Unlike state aid for secular instruction in religious schools, which raises real risks either of religious schools repurposing secular funds to religious ends or heavy-handed state involvement in quotidian regulation of religious schools’ operations, cyberteaching is 100% secular and under secular state control. Conceptually its use by the religious school is very similar to such a school’s use of a public library, or of state-provided maps or films. Indeed, I think it would be unconstitutional to allow students to log on to cyberschool anywhere and anytime except while under the physical supervision of a religious teacher. It would surely be unconstitutional to prohibit religious teachers from putting their own gloss, on their own time, upon what the students are learning in their secular classes.

But logistically the model is something very new. It creates a religious school whose secular program is state-funded and largely state-directed, but whose scheduling and context is in religious hands.

Short of abolishing cybercharters (which some states have done) can such initiatives be blocked? If not, is that a reason to abolish them? Or might it be acceptable, or even welcome, that the internet can create a new kind of religious pluralism in American education, where secular schooling remains under secular direction but which lacks the firm wall between its pursuit and the acquisition of religious education?

Aaron, Great to see you writing here, and excellent points. I look forward to your forthcoming article. Like you, I don’t see any constitutional issue here (other than the one that Pierce already resolved). In fact, many homeschooled students have been using virtual schooling in the way you describe for some time (both through cyber-charters and through state-maintained “official” virtual schools). I have not studied this empirically, but I would theorize that, at least at the high school level, this combination is likely to offer a better overall quality of curriculum and instruction to the average homeschooled student than homeschooling alone, and I suspect that the same would be true for some “private school-public virtual school” combinations.

The biggest objection that I can see is not constitution-based, but policy-based: Do we want to set up learning systems that encourage the greater social fragmentation of society into affinity groups (religious or otherwise)? Public education has many purposes, but aside from pure education, one of its main purposes has always been socialization through a common cultural experience. Perhaps there is less value in this kind of socialization than we have assumed for much of public education’s history, or perhaps positive socialization is better achieved through one’s own affinity group. But allowing for a la carte public education does seem to prioritize individual and small group interests over societal and communitarian interests, and as a matter of public policy, we have to wrestle with that prioritization.

Seems to me that you can only prioritize “societal and communitarian interests”, (More perjoratively, the government’s interest in an extended oportunity to brainwash children.) to so great an extent, before people, most of whom are members of some ‘affinty group’ or another will reject public education altogether.

The idea that the children are government’s, and it tolerates their being raised privately so long as doing so doesn’t compromise it’s interests, is not terribly popular.

Brett is expressing a popular idea, and a reasonable one, but not one to which I subscribe in its totality: that by regulating education the government instantiates an illegitimate policy of treating children as its own. My view (fairly common among academics) is that the state, like parents, ought to have some power in shaping children’s education. Since children cannot do this for themselves, someone else has to do it, and better a partnership between state and parents than either being given total control. The question is where to draw the line. I would draw it closer to the state than Brett would, but farther away, I think, than Scott.

Scott’s concerns, as always, are cogent. But I have two responses. One is whether, given the cybercharter form, we *can* avoid this kind of social fragmentation with respect to religion, or whether the First Amendment will interfere. The other is to ask whether the view that public schools provide a “common cultural experience” is more aspirational than real. The stratified public schools of the actual world already in many respects prioritize “individual and small group interests over societal and communitarian interests.” Fragmentation based upon race, wealth and zip code are arguably more pernicious than fragmentation based upon other kinds of affinity, including religion.

Aaron, good points again. First, let me say that I do not suggest at this point where the line should be drawn–only that, in drawing it, the proper balance to consider is that between individual interests and communitarian interests as a policy matter. The legal boundaries of this consideration, as you say, will come out of the Religion Clauses and the association rights embedded in the First Amendment, but these only prohibit government from preventing or substantially interfering with affinity group fragmentation, for example by banning homeschooling or private education. Pierce resolved that question. They do not require government to fund such fragmentation either directly or indirectly, for example by making it as easy and cheap as possible to benefit from the public education system while also rejecting its structure, curriculum, and civic socialization.

So it will still be a policy question whether a state should enable fragmentation by allowing for a la carte public education or not. I suspect that most states will see it as a good idea and allow for it, but I worry that this decision will be made without considering carefully whether public education in a physical space affords social and communitarian benefits that go beyond book learning. One way to find out may be to make these a la carte experiences widely available, and see whether parents nevertheless send their kids to public school for the social benefits.

Although Brett may be arguing against a straw man, he is correct that the political limits on the balance between individual interests and communitarian interests will depend on whether the state is widely perceived as overreaching, even though its actions are legal and constitutional. Some would prefer to challenge the more pernicious forms of fragmentation you identify based on the failure of the government to fulfill its (I think fiduciary) duty to act in the people’s best interests, while others will see the very idea of a duty to provide an adequate, common school education as government overreach and instead favor expanding individual (and small group) license to pursue their individual best interests with minimal assistance from the state (vouchers are a good example of this). All I’m saying is that the question of whether we enable people to fragment themselves while still drawing public educational benefits is a question that depends on whether there is anything other than book learning in the physical public educational space worth preserving, or whether, as you suggest, the pernicious effects of having location-based schooling might outweigh these benefits.

“As Prof. Saiger notes, the “idea that the children are government’s” is a strawman at some point.”

And at some point it isn’t. And if you’re worried that the children of members of some “affinity group” might be raise AS members of that affinity group, you’ve likely reached that point.

Public education is uncontroversial only in so far as it doesn’t reach that line. Once it crosses it, your opinion of it is likely to vary according to the extent you think it’s imposing your own values on other people’s children, rather than others’ values on your children.

#8 suggests the government is one of limited power and at some point transgresses on individual liberty. Well, yes.

So, we have to address matters of degree. Still not sure it was phrased in the best fashion. At some point, parents cannot do certain things to their children. This might have an ideological aspect. If the “affinity group” membership, e.g., is not providing necessary medical care, yes, the state can step in when minors are involved at some point.

But the context we have here, the content of the instruction is being provided by the government, simply in a religious environment. Presumably the online instruction will include, and grade on, all subject matter the government considers to be important. So this is decidedly NOT a matter of the religious school refusing to teach evolution, for instance. It will get taught and graded, and all that may happen is that the students are told that some parts of what they’re being required to learn are wrong.

But religious institutions are free to do that anyway. In fact, it’s irresponsible for parents to NOT tell their children some of what’s taught in government schools isn’t true. (Like the fairy tales that are told about how the legislature functions.) Frankly, were the government to take the position that nobody could tell children anything being taught by the government was wrong, we’d be getting into territory where overthrowing the government might even be appropriate. That’s the stuff of totalitarian nations, not free ones.

The chief objection here actually seems to be that this is a way to prevent education in a religious/private context from being impossibly expensive for most families, by allowing them to get the education they’re already paying for, only in a context they like better. That people might be able at last to afford what they already have a right to do.